Oct. 3, 2013

The Saint Thomas Outpatient Neurosurgical Center and its owners and affiliates are among those who have not agreed to enter mediation regarding last year's outbreak of fungal meningitis. / Mark Humphrey / File / Associated Press

Written by

Walter F. Roche Jr.

The Tennessean

The lead counsel for plaintiffs suing over the nationwide fungal meningitis outbreak has issued a stern warning to defendants, including a Nashville clinic, that they will face vigorous federal litigation if they refuse to participate in a court-approved mediation program to aid victims.

Thomas Sobol, counsel for the plaintiffs’ steering committee, issued the warning Wednesday on the eve of the one-year anniversary of the disclosure by the U.S. Centers for Disease Control and Prevention that a growing outbreak already had taken lives in Tennessee and elsewhere.

“Potentially responsible parties who do not step up, enter into a court-established mediation program and voluntarily make fair and just contributions to the victim compensation fund will be subject to aggressive federal litigation,” said Sobol, a Boston attorney.

Among those who have not agreed to enter the mediation being overseen by U.S. District Judge F. Dennis Saylor IV are the Saint Thomas Outpatient Neurosurgical Center and its owners and affiliates. Saint Thomas Network and the Howell Allen Clinic each own half of the center, where dozens of patients were injected with contaminated steroids last year.

C.J. Gideon, attorney for Saint Thomas Outpatient, said the blame for the outbreak rests with the New England Compounding Center, the Massachusetts drug compounding firm that was the source of the fungus-tainted spinal steroids.

“Our clients, and the patients, have all been victims of NECC’s irresponsible conduct. Threats of aggressive litigation tactics are not new,” Gideon said.

He added that he had “outlined scores of specific shortcomings in the mediation program, which were so numerous and material that I expected few, if any, health care providers would choose to participate. All of my specific comments and suggestions were ignored.”

The health care providers in Tennessee, like the overwhelming majority of health care providers in the United States, declined to participate in the mediation program, Gideon said.

Victims fund

In their statement, the plaintiffs’ attorneys said they have been seeking contributions to a victims fund from “parties such as testing, cleaning and equipment vendors” that serviced the drug compounding firm blamed for the outbreak.

They noted that those parties that participate in the mediation program “will be relieved of discovery and other litigation obligations and can focus on ... achieving a fair and expedient resolution.”

“Unfortunately, none of the Saint Thomas entities opted into the mediation program. Saint Thomas missed another opportunity to step up and do the right thing for the victims of their own wrongdoing. We intend to vigorously prosecute the cases against them,” said Nashville attorney Gerard Stranch, who represents several local victims.

According to the latest tally from the CDC, 64 patients have died in the outbreak, 16 of whom were treated in Tennessee, while 750 have been sickened, including 150 treated in Tennessee.

Promising to pursue “all persons potentially responsible for this bleak episode,” Sobol said he had been working closely with Stranch and other Tennessee attorneys representing local victims. He said the litigation against those refusing to participate in the mediation would likely be in federal courts.

January deadline

At the same time, attorneys involved in the bankruptcy case of the New England Compounding Center stressed that all possible victims of the company’s products — not just the fungus-tainted spinal steroid — should file claims by a Jan. 15 deadline.

In a joint statement, attorneys involved in both the bankruptcy and civil litigation stemming from the outbreak said the mediation effort was an attempt to maximize the amount of money available to victims and their survivors.

“In their commitment to maximize recovery to all victims, both committees are actively working toward a prompt, global resolution,” Sobol said.

The statements came as additional suits from victims in Tennessee and other states were filed in federal courts. In U.S. District Court in Nashville alone, 98 suits have been filed since Sept. 1.

The filings show that the vast majority of the Tennessee victims were treated at the Nashville neurosurgical center, while a handful were treated at Specialty Surgery Center in Crossville. According to the CDC, potentially tainted steroids from NECC also were shipped to the PCA Pain Center in Oak Ridge, but no lawsuits have been filed against that facility in federal court.

All of the filed cases are expected to be merged in Saylor’s court in Boston.